Carbajal v. Warner et al

Filing 229

ORDER. The Recommendation of United States Magistrate Judge 198 filed 8/8/2011, is rejected respectfully to the extent the magistrate judge recommends that the plaintiffs claims against Myrl Serra and Sherri Price based on allegations that these d efendants intentionally destroyed exculpatory evidence in plaintiff Dean Carbajals criminal case be dismissed based on prosecutorial immunity. The Recommendation of United States Magistrate Judge 198 filed8/8/2011, is rejected respectfully to the extent the magistrate judge recommendsthat the plaintiffs claims against Carol Warner, Richard Mahar, David Romero, and Joseph Quintana based on allegations that these defendants intentionally prepared and submitted false affidavits in support of con tentions that Dean Carbajal had violated the terms of his parole and/or deferred judgment be dismissed based on quasi-judicial or qualified immunity. The Second Response To Second Amended Complaint and Motion for Relief From Suit 128 filed 4/13/201 1, which I read as a motion to dismiss, is GRANTED. All claims asserted against defendant Gregory Sullivan are DISMISSED with prejudice. tTe Defendants, Seventh Judicial District, Delta County Board of County Commissioners, Myrl Serra, Sherri Price , Patricia Kramer, Unknown Delta Sheriff, Bill Railey, Chris Weldon, Deputy Hatch, B. Wolfe, and Brian Shroeders, Motion To Dismiss Plaintiffs [Second] Amended Complaint 135 filed 4/28/2011, is DENIED as to claims asserted by plaintiff Dean Carbaja l against defendants Myrl Serra and Sherri Price based on allegations that these defendants destroyed exculpatory evidence in a criminal prosecution against plaintiff Dean Carbajal. Otherwise, the Defendants, Seventh Judicial District, Delta County B oard of County Commissioners, Myrl Serra, Sherri Price, Patricia Kramer, Unknown Delta Sheriff, Bill Railey, Chris Weldon, Deputy Hatch, B. Wolfe, and Brian Shroeders, Motion To Dismiss Plaintiffs [Second] Amended Complaint 135 filed 4/28/2011, is GRANTED. under FED. R. CIV. P. 12(b)(1), all claims asserted by the plaintiffs against defendants Seventh Judicial District, Delta County Board of County Commissioners, Myrl Serra, Sherri Price, Patricia Kramer, Unknown Delta Sheriff, Bill Railey, Ch ris Weldon, Deputy Hatch, B. Wolfe, Brian Shroeder are DISMISSED with prejudice, except for the claims asserted by plaintiff Dean Carbajal against defendants Myrl Serra and Sherri Price based on allegations that these defendants destroyed exculpatory evidence in a criminal prosecution against Dean Carbajal. The State Defendants Motion To Dismiss the Second Amended Complaint 137 filed 4/29/2011, is DENIED to the extent plaintiff Dean Carbajal asserts claims against defendants Carol Warner, Davi d Romero, and Joseph Quintana based on allegations that these defendants, acting as probation officers, knowingly and intentionally prepared and submitted false affidavits in support of contentions that Dean Carbajal had violated the terms of his par ole and/or deferred judgment. Otherwise, the State Defendants Motion To Dismiss the Second Amended Complaint 137 filed 4/29/2011, is GRANTED. under FED. R. CIV. P. 12(b)(1), all claims against defendants Steven Patrick, Charles Greenacre, Sandra Mi ller, James Schum, Jeff Herron, Mandy Allen, Carrol Warner, David Romero, Joe Quintana, and the Colorado Department of Corrections are DISMISSED with prejudice, except for the claims asserted by plaintiff Dean Carbajal against defendants Carol Warner , David Romero, and Joseph Quintana based on allegations that these defendants, acting as probation officers, knowingly and intentionally prepared and submitted false affidavits in support of contentions that Dean Carbajal had violated the terms of h is parole and/or deferred judgment. The claims against defendant Jeff Boyd Herron based on his alleged conduct when acting as a judicial officer are DISMISSED with prejudice under Fed. R. Civ. P. 12(b)(1). The claims against defendant Jeff Boyd Her ron based on his alleged conduct when acting as a defense attorney are DISMISSED with prejudice under Fed. R. Civ. P. 12(b)(6). The Defendants Joint Motion To Dismiss 141 is GRANTED on the terms stated in paragraphs fourteen (14) through twenty-on e (21),below. The plaintiffs complaint 119 is DISMISSED for failure to comply with the requirements of FED. R. CIV. P. 8. Under FED. R. CIV. P. 12(b)(6), the claims asserted by plaintiff Victoria Carbajal are DISMISSED with prejudice. Under FED. R. CIV. P. 12(b)(6), all claims asserted against individual defendants in their official capacities are DISMISSED with prejudice. Under FED. R. CIV. P. 12(b)(6), all claims asserted against defendants Don Wick, Arvada Chief of Police, and Denver Chie f of Police are DISMISSED with prejudice. Under FED. R. CIV. P. 12(b)(6), the claims asserted against defendant government entities Seventh Judicial District, Delta County Board of County Commissioners, City of Denver, Colorado Department of Correcti ons, City of Westminster, and City of Arvada are DISMISSED with prejudice. Under FED. R. CIV. P. 12(b)(6), all claims against defendants Patrick Meester, A.J. DeAndrea, and Jourdan Lopez-Basgall are DISMISSED with prejudice. Under FED. R. CIV. P. 12 (b)(6), plaintiff Dean Carbajals state law claim for fraud asserted against all defendants is DISMISSED with prejudice. Under FED. R. CIV. P. 12(b)(6), all claims based on alleged conduct that occurred before 11/23/2009, excluding any claim directly related to the improper extension or revocation of plaintiff Dean Carbajals deferred judgment, are DISMISSED with prejudice because all such claims are time barred. The Defendants Joint Motion To Dismiss 141 is DENIED without prejudice to the ext ent the defendants argue for the dismissal of other claims for failure to state a claim on which relief can be granted and based on theassertion of qualified immunity. The Motion by Defendants Laurie Freund, James Dixon, Adam Barrett, Sgt. Speerman, Joel Smith, Abbegayle Dorn, Jesse Rembert, Michael ONeill, Brian ONeill and Unknown Denver Police Officers One Through Four To Dismiss the Second Amended Complaint Pursuant to FED. R. CIV. P. Rule 12(b)(5) 142 is DENIED without prejudice. The foll owing parties are DROPPED from this action: a) plaintiff Victoria Carbajal, b) Seventh Judicial District, c) Delta County Board of County Commissioners, d) Jeff Boyd Herron, e) J. Steven Patrick, f) Charles R. Greenacre, g) Sandra K. Miller, h) James W. Schum, i) Mandy Allen, j) Patricia Kramer; k) Unknown Delta Sheriff, l) Cityof Denver, m) Denver Chief of Police, n) Colorado Department of Corrections, o) City of Westminster, p) City of Arvada, q) Don Wick, r) Patrick Meester, s) A.J. DeAndrea, t) Jourdan Lopez-Basgall; and u) Gregory Sullivan. The Supplemental Recommendation of United States Magistrate Judge 202 filed August 9, 2011, which clarifies the recommendation of the magistrate judge concerning the dismissal with prejudice of c laims against the Denver Chief of Police, is APPROVED and ADOPTED. The Supplemental Recommendation of United States Magistrate Judge 207 filed 8/19/2011, which clarifies the recommendation of the magistrate judge concerning the dismissal with preju dice of claims against the City of Arvada, is APPROVED and ADOPTED. Defendants Request for Clarification, or Alternatively, Objection to Courts 8/8/2011 Report and Recommendation 209 filed 8/22/2011, is GRANTED. By Judge Robert E. Blackburn on 10/19/2011.(sah2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-02862-REB-KLM
VICTORIA CARBAJAL, and
DEAN CARBAJAL,
Plaintiffs,
v.
SEVENTH JUDICIAL DISTRICT, political subdivision of the State of Colorado, et al.,
Defendants.

ORDER ADOPTING IN PART AND REJECTING IN PART
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) Second Response To Second
Amended Complaint and Motion for Relief From Suit [#128]1 filed April 13, 2011,
which I read as a motion to dismiss; (2) Defendants, Seventh Judicial District, Delta
County Board of County Commissioners, Myrl Serra, Sherri Price, Patricia
Kramer, Unknown Delta Sheriff, Bill Railey, Chris Weldon, Deputy Hatch, B. Wolfe,
and Brian Shroeder’s, Motion To Dismiss Plaintiffs’ [Second] Amended Complaint
[#135] filed April 28, 2011; (3) State Defendants’ Motion To Dismiss the Second
Amended Complaint [#137] filed April 29, 2011; (4) Defendants’ Joint Motion To
Dismiss [#141] filed April 29, 2011; (5) Motion by Defendants Laurie Freund, James
Dixon, Adam Barrett, Sgt. Speerman, Joel Smith, Abbegayle Dorn, Jesse
1

“[#128]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

Rembert, Michael O’Neill, Brian O’Neill and Unknown Denver Police Officers One
Through Four To Dismiss the Second Amended Complaint Pursuant to FED. R.
CIV. P. Rule 12(b)(5) [#142] filed April 29, 2011; (6) Recommendation of United
States Magistrate Judge [#198] filed August 8, 2011; (7) Supplemental
Recommendation of United States Magistrate Judge [#202] filed August 9, 2011; (8)
Supplemental Recommendation of United States Magistrate Judge [#207] filed
August 19, 2011; and (9) Defendants’ Request for Clarification, or Alternatively,
Objection to Court’s August 8, 2011 Report and Recommendation [#209] filed
August 22, 2011.
Defendant Unknown Delta Sheriff filed an objection [#210] to the
recommendation, and the plaintiffs filed an objection [#211] to the recommendation. I
sustain the objection [#210] filed by Unknown Delta Sheriff. I sustain the plaintiffs’
objection [#211] on the two points discussed in this order. Otherwise, I overrule the
plaintiff’s objection. I respectfully reject the August 8, 2011, recommendation [#198] on
the two points discussed in this order. Otherwise, I approve and adopt that
recommendation [#198] and the two supplemental recommendations [#202 & #207].
Thus, I deny the motions to dismiss in part and grant them in part.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendations to which objections have been filed. I have considered carefully the
recommendations, the objections, and the applicable case law.
Because the plaintiffs are proceeding pro se, I have construed their pleadings
and other filings more liberally and held them to a less stringent standard than formal
pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d
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1106, 1110 (10th Cir. 1991). However, I have not acted as an advocate for the pro se
plaintiffs.
The recommendation is detailed and well-reasoned. On the few issues
discussed below, I disagree with the magistrate judge’s recommended resolution of the
motions to dismiss. On those issues, I respectfully reject the recommendation.
Otherwise, I approve and adopt the recommendation as an order of this court.
As summarized by the plaintiffs in a response to one of the present motions to
dismiss, the plaintiffs’ “claims arise out of Defendants[’] [alleged] decade long
conspiracy to arrest, prosecute, convict, incarcerate, and arrest Mr. Carbajal for crimes
the Defendants know he did not commit, violating Mr. Carbajal’s and his family’s First,
Fourth, Eighth and Fourteenth Amendment [rights].” Response [#155], p. 1. It is this
alleged unconstitutional conduct that brings the parties to federal court.
The operative complaint [#119] consists of 111 pages. The complaint is
accompanied by a separate 65 page document captioned as a Declaration of Truth
[#119-2 to #119-4]. The magistrate judge concludes, and I agree, that the prolixity of
the plaintiffs’ complaint violates the pleading requirements FED. R. CIV. P. 8(a). The lack
of organization in the complaint also violates the requirements of Rule 8. The complaint
[#119] is subject to dismissal on this basis alone. Because the operative complaint
[#119] is the plaintiffs’ third attempt to plead their claims, the magistrate judge reviewed
the plaintiffs’ allegations under FED. R. CIV. P. 12(b)(1) and (b)(6), in addition to
assessing the complaint under FED. R. CIV. P. 8.
The analysis of the magistrate judge is detailed and comprehensive. With only
two exceptions, which are discussed below, I agree with the magistrate judge’s
analysis. The magistrate judge’s Rule 12(b) analysis should provide plaintiff Dean
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Carbajal with some guidance in his fourth attempt to plead his claims.
A. Prosecutorial Immunity
Defendants Myrl Serra, Sherri Price, and Patricia Kramer all are prosecutors who
were involved allegedly in one or more criminal prosecutions against plaintiff Dean
Carbajal. The magistrate judge recommends that the claims against these defendants
be dismissed based on prosecutorial immunity. The plaintiffs object to that
recommendation to the extent the plaintiffs’ claims are based on the allegation that
these defendants destroyed exculpatory evidence.
The United States Court of Appeals for the Third Circuit has held that a claim
based on a prosecutor’s alleged destruction of exculpatory evidence does not fall within
the broad protection provided by prosecutorial immunity. Yarris v. County of
Delaware, 465 F.3d 129, 136 - 137 (3rd Cir. 2006); see also Masters v. Gilmore, 663
F.Supp.2d 1027, 1039 - 1040 (D. Colo. 2009). The destruction of exculpatory evidence
does not fall within prosecutorial immunity because such an action is not related to the
prosecutorial function. Id. On this basis, I disagree with the magistrate judge’s
recommendation concerning the applicability of prosecutorial immunity to the claims
against these defendants, but only to the extent the plaintiffs assert claims that
defendants Myrl Serra, Sherri Price, and Patricia Kramer destroyed exculpatory
evidence in a criminal prosecution against Dean Carbajal. Otherwise, I agree that the
claims against these defendants are subject to dismissal based on prosecutorial
immunity.
It must be noted that defendant Patricia Kramer died on August 18, 2007. Motion
to dismiss [#52], p. 6. The plaintiffs do not dispute this contention. In this circumstance,
a suit against Patricia Kramer is not proper. Rather, Ms. Kramer’s estate or its personal
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representative must be substituted. See, e.g., Martinez v. Winner, 771 F.2d 424, 443
(10th Cir. 1985). On this basis, I dismiss all claims asserted against Patricia Kramer.
B. Absolute or Qualified Immunity - Probation Officers
Defendants Carol Warner, Richard Mahar, David Romero, and Joseph Quintana
are probation officers who were involved allegedly in the supervision of Dean Carbajal
while on deferred judgment. The plaintiffs allege that these defendants knowingly and
intentionally prepared and submitted false affidavits in support of contentions that Dean
Carbajal had violated the terms of his parole and/or deferred judgment. The magistrate
judge recommends that the claims against these defendants be dismissed because
these defendants are entitled to testifying witness immunity and quasi-judicial immunity
in relation to claims based on statements these defendants made to courts in affidavits,
which statements concerned Dean Carbajal’s deferred judgment or parole supervision.
To the extent the plaintiffs allege that these defendants knowingly submitted false
affidavits in support of contentions that Dean Carbajal had violated the terms of his
parole or deferred judgment, I disagree with the magistrate judge’s recommendation. In
the Tenth Circuit, “decisions involving the revocation of probation or parole by a
probation or parole officer warrant only qualified, not absolute, immunity.” Snell v.
Tunnell, 920 F.2d 673, 692 n. 18 (10th Cir. 1990). For example, a parole officer who
presents false information in order to have a parolee’s parole revoked is not shielded by
qualified immunity. Russ v. Uppah, 972 F.2d 300, 303 - 304 (10th Cir. 1992). In this
context, a parole officer is analogous to a probation officer. The plaintiffs allege that the
probation officer defendants, Carol Warner, Richard Mahar, David Romero, and Joseph
Quintana, knowingly and intentionally prepared and submitted false affidavits in support
of contentions that Dean Carbajal had violated the terms of his parole and deferred
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judgment. In evaluating the current motions to dismiss, I must assume these
allegations to be true. If these allegations are true, then the probation officer
defendants are not entitled to quasi-judicial or qualified immunity on a claim based on
these allegations.2
C. Conclusion & Orders
Except for the issues relating to prosecutorial immunity and quasi-judicial or
qualified immunity discussed above, I agree with the analysis of the magistrate judge as
stated in the three recommendations currently at issue.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#198] filed
August 8, 2011, is rejected respectfully to the extent the magistrate judge recommends
that the plaintiffs’ claims against Myrl Serra and Sherri Price based on allegations that
these defendants intentionally destroyed exculpatory evidence in plaintiff Dean
Carbajal’s criminal case be dismissed based on prosecutorial immunity;
2. That the Recommendation of United States Magistrate Judge [#198] filed
August 8, 2011, is rejected respectfully to the extent the magistrate judge recommends
that the plaintiffs’ claims against Carol Warner, Richard Mahar, David Romero, and
Joseph Quintana based on allegations that these defendants intentionally prepared and
submitted false affidavits in support of contentions that Dean Carbajal had violated the
terms of his parole and/or deferred judgment be dismissed based on quasi-judicial or
qualified immunity;
3. That the Second Response To Second Amended Complaint and Motion

2

The record indicates that defendant Richard Mahar has not been served with a summons and
the complaint. As a result, no motion to dismiss was filed by him or on his behalf.

6

for Relief From Suit [#128] filed April 13, 2011, which I read as a motion to dismiss, is
GRANTED;
4. That all claims asserted against defendant Gregory Sullivan are DISMISSED
with prejudice;3
5. That the Defendants, Seventh Judicial District, Delta County Board of
County Commissioners, Myrl Serra, Sherri Price, Patricia Kramer, Unknown Delta
Sheriff, Bill Railey, Chris Weldon, Deputy Hatch, B. Wolfe, and Brian Shroeder’s,
Motion To Dismiss Plaintiffs’ [Second] Amended Complaint [#135] filed April 28,
2011, is DENIED as to claims asserted by plaintiff Dean Carbajal against defendants
Myrl Serra and Sherri Price based on allegations that these defendants destroyed
exculpatory evidence in a criminal prosecution against plaintiff Dean Carbajal;
6. That otherwise, the Defendants, Seventh Judicial District, Delta County
Board of County Commissioners, Myrl Serra, Sherri Price, Patricia Kramer,
Unknown Delta Sheriff, Bill Railey, Chris Weldon, Deputy Hatch, B. Wolfe, and
Brian Shroeder’s, Motion To Dismiss Plaintiffs’ [Second] Amended Complaint
[#135] filed April 28, 2011, is GRANTED;
7. That under FED. R. CIV. P. 12(b)(1), all claims asserted by the plaintiffs against
defendants Seventh Judicial District, Delta County Board of County Commissioners,
Myrl Serra, Sherri Price, Patricia Kramer, Unknown Delta Sheriff, Bill Railey, Chris
Weldon, Deputy Hatch, B. Wolfe, Brian Shroeder are DISMISSED with prejudice,
except for the claims asserted by plaintiff Dean Carbajal against defendants Myrl Serra
and Sherri Price based on allegations that these defendants destroyed exculpatory

3

I approve and adopt the reasons advanced and authority cited by the magistrate judge in the
recommendation [#198] for the dismissal of claims with prejudice.

7

evidence in a criminal prosecution against Dean Carbajal;
8. That the State Defendants’ Motion To Dismiss the Second Amended
Complaint [#137] filed April 29, 2011, is DENIED to the extent plaintiff Dean Carbajal
asserts claims against defendants Carol Warner, David Romero, and Joseph Quintana
based on allegations that these defendants, acting as probation officers, knowingly and
intentionally prepared and submitted false affidavits in support of contentions that Dean
Carbajal had violated the terms of his parole and/or deferred judgment;
9. That otherwise, the State Defendants’ Motion To Dismiss the Second
Amended Complaint [#137] filed April 29, 2011, is GRANTED;
10. That under FED. R. CIV. P. 12(b)(1), all claims against defendants Steven
Patrick, Charles Greenacre, Sandra Miller, James Schum, Jeff Herron, Mandy Allen,
Carrol Warner, David Romero, Joe Quintana, and the Colorado Department of
Corrections are DISMISSED with prejudice, except for the claims asserted by plaintiff
Dean Carbajal against defendants Carol Warner, David Romero, and Joseph Quintana
based on allegations that these defendants, acting as probation officers, knowingly and
intentionally prepared and submitted false affidavits in support of contentions that Dean
Carbajal had violated the terms of his parole and/or deferred judgment;
11. That the claims against defendant Jeff Boyd Herron based on his alleged
conduct when acting as a judicial officer are DISMISSED with prejudice under Fed. R.
Civ. P. 12(b)(1);
12. That the claims against defendant Jeff Boyd Herron based on his alleged
conduct when acting as a defense attorney are DISMISSED with prejudice under Fed.
R. Civ. P. 12(b)(6);
13. That the Defendants’ Joint Motion To Dismiss [#141] filed April 29, 2011,
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is GRANTED on the terms stated in paragraphs fourteen (14) through twenty-one (21),
below;
14. That the plaintiffs’ complaint [#119] is DISMISSED for failure to comply with
the requirements of FED. R. CIV. P. 8;
15. The under FED. R. CIV. P. 12(b)(6), the claims asserted by plaintiff Victoria
Carbajal are DISMISSED with prejudice;
16. That under FED. R. CIV. P. 12(b)(6), all claims asserted against individual
defendants in their official capacities are DISMISSED with prejudice;
17. That under FED. R. CIV. P. 12(b)(6), all claims asserted against defendants
Don Wick, Arvada Chief of Police, and Denver Chief of Police are DISMISSED with
prejudice;
18. That under FED. R. CIV. P. 12(b)(6), the claims asserted against defendant
government entities Seventh Judicial District, Delta County Board of County
Commissioners, City of Denver, Colorado Department of Corrections, City of
Westminster, and City of Arvada are DISMISSED with prejudice;
19. That under FED. R. CIV. P. 12(b)(6), all claims against defendants
Patrick Meester, A.J. DeAndrea, and Jourdan Lopez-Basgall are DISMISSED with
prejudice;
20. That under FED. R. CIV. P. 12(b)(6), plaintiff Dean Carbajal’s state law claim
for fraud asserted against all defendants is DISMISSED with prejudice;
21. That under FED. R. CIV. P. 12(b)(6), all claims based on alleged conduct that
occurred before November 23, 2009, excluding any claim directly related to the
improper extension or revocation of plaintiff Dean Carbajal’s deferred judgment, are
DISMISSED with prejudice because all such claims are time barred;
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22. That the Defendants’ Joint Motion To Dismiss [#141] filed April 29, 2011,
is DENIED without prejudice to the extent the defendants argue for the dismissal of
other claims for failure to state a claim on which relief can be granted and based on the
assertion of qualified immunity;
23. That if plaintiff Dean Carbajal chooses to file an amended complaint in this
case, under the terms specified in this order, then the defendants may re-visit these
arguments when addressing such an amended complaint, which amended complaint
the court will require to be reasonably focused and brief;
24. That the Motion by Defendants Laurie Freund, James Dixon, Adam
Barrett, Sgt. Speerman, Joel Smith, Abbegayle Dorn, Jesse Rembert, Michael
O’Neill, Brian O’Neill and Unknown Denver Police Officers One Through Four To
Dismiss the Second Amended Complaint Pursuant to FED. R. CIV. P. Rule 12(b)(5)
[#142] filed April 29, 2011, is DENIED without prejudice;
25. That the following parties are DROPPED from this action: a) plaintiff Victoria
Carbajal, b) Seventh Judicial District, c) Delta County Board of County Commissioners,
d) Jeff Boyd Herron, e) J. Steven Patrick, f) Charles R. Greenacre, g) Sandra K. Miller,
h) James W. Schum, i) Mandy Allen, j) Patricia Kramer; k) Unknown Delta Sheriff, l) City
of Denver, m) Denver Chief of Police, n) Colorado Department of Corrections, o) City of
Westminster, p) City of Arvada, q) Don Wick, r) Patrick Meester, s) A.J. DeAndrea, t)
Jourdan Lopez-Basgall; and u) Gregory Sullivan, and the caption of this case SHALL
BE AMENDED to remove these parties from the caption of this case;
26. That on or before November 15, 2011, plaintiff Dean Carbajal may file a third
amended complaint;
27. That any third amended complaint MUST COMPLY with the following
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conditions:
a. The third amended complaint shall be no more than 25 pages in length;
b. The page limitation shall be applicable to and include all matters
addressed in the third amended complaint, except for the certificate of
service;
c. The page limitation shall be applicable to and include any attachment
to the complaint, such as affidavits, declarations, or any other attachment;
d. Any third amended complaint may not include claims that have been
dismissed with prejudice in this order;
e. Any third amended complaint may not name as a defendant any party
who has been dropped from this action;
f. Any third amended complaint may not include claims based on alleged
conduct that occurred before November 23, 2008, unless such conduct
was directly related to an improper extension or revocation of Mr.
Carbajal’s deferred judgment;
g. Any third amended complaint must comply with the requirements of
FED. R. CIV. P. 8; and
h. Any third amended complaint shall be written on the court’s standard
prisoner complaint form for actions under 42 U.S.C. § 1983;
28. That the Clerk of the court SHALL MAIL to plaintiff Dean Carbajal, at his
address of record, a copy of the court’s standard prisoner complaint form for actions
under 42 U.S.C. § 1983;
29. That any third amended complaint filed by plaintiff Dean Carbajal that does
not comply with the requirements of this order and FED. R. CIV. P. 8, SHALL BE
11

STRICKEN;
30. That plaintiff Dean Carbajal is WARNED that the filing of a third amended
complaint that does not comply with the requirements of this order and FED. R. CIV. P. 8,
may result in the imposition of sanctions, which sanctions may include dismissal of this
case;
31. That if plaintiff Dean Carbajal files a third amended complaint, any defendant
named in that complaint shall be permitted to file a motion to dismiss the third amended
complaint;
32. That the Supplemental Recommendation of United States Magistrate
Judge [#202] filed August 9, 2011, which clarifies the recommendation of the
magistrate judge concerning the dismissal with prejudice of claims against the Denver
Chief of Police, is APPROVED and ADOPTED as an order of this court;
33. That the Supplemental Recommendation of United States Magistrate
Judge [#207] filed August 19, 2011, which clarifies the recommendation of the
magistrate judge concerning the dismissal with prejudice of claims against the City of
Arvada, is APPROVED and ADOPTED as an order of this court;
34. That the objection [#210] filed by defendant Unknown Delta Sheriff is
SUSTAINED;
35. That the objection [#211] filed by the plaintiffs is SUSTAINED to the extent
the plaintiffs assert that prosecutorial immunity is not applicable to the plaintiffs’ claims
that defendants Myrl Serra and Sherri Price destroyed exculpatory evidence in a
criminal prosecution against Dean Carbajal;
36. That the objection [#211] filed by the plaintiffs is SUSTAINED to the extent
the plaintiffs assert that absolute or qualified immunity is not applicable to the plaintiffs’
12

claims that defendants Carol Warner, Richard Mahar, David Romero, and Joseph
Quintana, acting as probation officers, knowingly and intentionally prepared and
submitted false affidavits in support of contentions that Dean Carbajal had violated the
terms of his parole and deferred judgment;
37. That otherwise, the objection [#211] filed by the plaintiffs is OVERRULED;
and
38. That Defendants’ Request for Clarification, or Alternatively, Objection
to Court’s August 8, 2011 Report and Recommendation [#209] filed August 22,
2011, is GRANTED as the court has considered the defendants’ replies [#190 & #191]
in resolving the issues addressed in the recommendations of the magistrate judge.
Dated October 19, 2011, at Denver, Colorado.
BY THE COURT:

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